(concurring in the result) :
I concur in the result.
I
Generally speaking Judge Brosman expresses my views, but I prefer to develop further two concepts suggested by him because I interpret the provisions of paragraph 13 of the Manual for Courts-Martial, United States, 1951, exactly opposite to the construction advanced by the Chief Judge. If we give meaning and content to all of the language set out therein, the policy declaration applies to all services and all *404commanders, including those who are detailed as commanding officers of a joint task force or a joint command. It hardly makes sense to me to except the latter commanders from its coverage when, so far as I can determine, they are the officials most apt to have all service court-martial systems available for trial of cases; and, they are the only ones mentioned in the Manual as having an assignment which will permit the President or the Secretary of Defense to empower them with authority to cross service lines for the prosecution of all service personnel. Either at the time the Manual was promulgated the declared policy applied to them or it applied to no one. In the latter event, its inclusion in the Manual was a futile and unnecessary act, a principle of construction which is not looked upon with favor. Under my interpretation, I would not offend against that canon as the policy declared by the President would apply to all convening authorities. But even if my construction was adopted by the Court, reversal would not follow as a matter of course.
Article 17 (a) of the Uniform Code of Military Justice, 50 USC § 577, provides :
“(a) Each armed force shall have court-martial jurisdiction over all persons subject to this code. The exercise of jurisdiction by one armed force over personnel of another armed force shall be in accordance with regulations prescribed by the President.”
To avoid the use of confusing terms, I shall arbitrarily substitute the words “power to proceed” for the phrase “exercise of jurisdiction.” When the two sentences of the Article are interpreted in the light of that substitution they state, in substance, that while each armed force has court-martial jurisdiction over all persons subject to the Code, the power of one service to proceed in its court-martial system against a member of another service does not come into existence until the President implements the Code with regulations governing the procedure.
Now as to the intent of Congress when it used the phrase “court-martial jurisdiction” in the first sentence, I would suggest it intended to state that the court-martial system of one service, up to and including review by the convening authority, was a proper vehicle by-which a member of another service could be charged with, tried for, and convicted of, an oifense against military law. Of course, the vehicle could not be used unless and until it was appropriately assembled by the President having promulgated regulations. In the event of assembling regulations, and if there were no Executive limitations, all courts-martial of the services would have authority to proceed against any member of any armed service. Here then, our proposition seems to be to determiné whether the President expressly conditioned the power to proceed upon a finding of manifest injury to the service or whether the policy declaration was merely an admonition which might influence, but did not bar, the right to prosecute. Stated somewhat differently, in the form of a question, to what extent does the manifest injury to the service declaration of policy found in the Manual block the flow of interservice prosecutions which have been authorized?
If the services are to develop a practical approach to an orderly military judicial system, they must give consideration to the President’s expressed declaration in paragraph 13 of the Manual and not cross service lines to prosecute each and every case without rhyme or reason. But that does not mean that commanders of task forces or joint commands have no discretion whatsoever to deal with personnel of their command; nor that every case must be tried by the service to which the accused belongs unless the prosecution affirmatively establishes that to do so would manifestly injure the military service. To narrow the power of a commander by that rule would disregard the plain meaning of some of the language used in the Manual and would unnecessarily restrict the policy as it was declared by the President. Moreover, it would convert a permissive provision into one of inflexible compulsion and deny a commander any liberty of action. By the language used the framers of the Manual must have intended to *405convey the thought that as a general proposition, or one to be applied in a majority of cases, a commander of a joint task force or joint command ought not to interfere with a service in processing its own offenders. But, if in any given instance, he concluded to exercise his authority and ordered the case to be tried by a court-martial of a service different from the one to which the accused belonged he would not abuse his discretion.
Each word of a regulation must be given some force and effect and, at best, the declaration that prosecution by one armed force over personnel of another shall not be initiated if the accused can be delivered to his own service without manifest injury is prefaced by a statement that it is general in scope and purpose. It is, as Judge Brosman has stated in his concurrence, couched in language which is not a positive command but merely a phrase of general guidance. As such it is not a condition precedent to prosecution but is merely a cautionary instruction for the guidance of the commanders. An accused has no inalienable right in a policy declaration and certainly no legal right to complain at a commander’s failure to follow admonitory directions. Assuming, without deciding, that the latter failed to comply literally with the policy, if that is an error, it cannot inure to the benefit of one brought to trial.
II
The second concept which bears some elaboration involves the right of the accused to first raise this issue on appeal. If the policy declaration of manifest injury constituted a limitation on the right to prosecute, it would mean, at most, that the court-martial could not use its latent power to subject the accused to a finding and sentence. In other words, it could not proceed against him because of the possibility that policy considerations might render him immune to prosecution. But an accused, by his acts, may waive immunity extended to him. Certainly, in a general way we are dealing with a right or privilege personal to an accused. As a general proposition of law, a person can waive that sort of preferment and in this instance I would hold the accused had done so. By failing to object at the time of trial, he neglected to make an issue at a time when if any showing were necessary it could have been made. It must be conceded that if certain facts existed, the convening authority could, in any event, order the accused tried by the court-martial which heard his case. Whether those facts were presented to the convening authority, we do not know; and he has not been afforded an opportunity to advance any reason which might have prompted him to refer this case to a court-martial convened by him rather than to release the accused to the Naval Service for disciplinary action. Absent any showing to the contrary, he is presumed to have acted within, and not without, the regulation. Had the accused raised the issue at the time of trial any facts material to the question could have been presented, weighed, and evaluated. So far as I am concerned, the burden to raise and prove a violation of a policy declaration is on the accused and it must be litigated before the trial court. While lack of jurisdiction, as generally understood, may be raised at any time, this case does not fall within the scope of that principle. At best, we have only a policy hurdle which cannot be seized upon for the first time on appeal.